Workplace COVID-19 Vaccination Considerations

The health and safety of employees during the COVID-19 pandemic has been a top concern for employees and employers alike. Now that the Canadian public health authorities have begun to roll out vaccinations against COVID-19, new considerations have arisen regarding employers' rights and obligations with respect to vaccination policies.

Jurisprudence on Mandatory Vaccination Policies

A key question for many is whether employers can implement mandatory vaccination policies, requiring employees to get vaccinated in order to return to work.

The short answer is that the law remains unclear. Given the unprecedented nature of the COVID-19 pandemic, there is no previously decided case law that directly deals with this unique issue.

However, mandatory vaccination policies are not entirely novel. In the healthcare setting, there have been previous cases that deal with mandatory vaccination policies or "vaccination or mask" (VOM) policies in the context of the seasonal flu. The decisions on this topic have been inconsistent. In every case, the outcome was highly dependent on the unique facts of the case.

It is also important to note that most of these decisions have been decided in the specific context of healthcare workers in a unionized setting. Otherwise, there is a general lack of guidance from legal jurisprudence on whether non-unionized and non-heath care workplaces may implement mandatory vaccination policies.

Case Law in Support of Vaccination Policies

In 2013, a British Columbia arbitrator considered a VOM policy that required employees to provide proof of vaccination against the flu or wear a mask. The VOM policy stipulated that if an individual did not comply with the VOM policy they could be subject to disciplinary action up to termination of employment. The arbitrator upheld the policy as reasonable on the basis that:

1. It was supported by scientific evidence that immunization reduced transmission of flu to patients;
2. Masking was patient-safety purposed and sufficiently accommodated health care workers who objected to vaccination;
3. It was not discriminatory as it did not require immunization;
4. The BC Centre for Disease Control had endorsed the policy; and
5. This kind of VOM policy was common.

In the Ontario case of North Bay General Hospital v. ONA, 2008 CarswellOnt 4709, an arbitrator upheld a mandatory flu vaccination policy imposed by the North Bay General Hospital on its workers. This decision was in part based on the fact there was a collective agreement including provisions on vaccination during a flu outbreak and that the Ministry of Health had made a recommendation to the hospital to implement these flu measures.

In both cases, the arbitrators took account of the fact that public health authorities had recommended or endorsed the respective policies. This suggests that the reasonableness of any COVID-19 vaccination policy will largely depend on the orders or guidance on mandatory vaccination that may be provided by applicable public health authorities. Employer are encouraged to remain up to date with and comply with all public health directives that may apply to their workplace.

Case Law Against Mandatory Vaccination Policies

In contrast, in two recent Ontario cases arbitrators found VOM policies to be unreasonable.

In Sault Area Hospital and Ontario Nurses' Association, 2015 CanLII 55643 the arbitrator concluded the VOM policy undermined the employees' rights under a collective agreement. The arbitrator also emphasized that there was insufficient scientific evidence to require employees to comply with the policy and that the VOM policy had not been mandated by a medical health officer nor the regulatory body.

Likewise, in St. Michael's Hospital v. Ontario Nurses' Association, 2018 CanLII 82519 the arbitrator held a VOM policy was unreasonable based on a lack of sufficient scientific evidence in favour of masks.

These cases were both decided in the context of the seasonal flu, and in the absence of significant medical evidence regarding the efficacy of wearing masks. It is questionable how relevant they are in the context of the COVID-19 pandemic.

Considerations for Dealing with COVID-19 Vaccination in the Workplace

Employers are encouraged to proactively develop a plan for dealing with COVID-19 vaccination in their workplace. This plan should be flexible enough to deal with the ongoing medical developments regarding COVID-19, any new orders issued by public health authorities, and circumstances where employees may be unable or unwilling to receive the vaccination.

One option for employers may be to issue a workplace memorandum that strongly encourages all employees to receive the COVID-19 vaccination for their own safety and the safety of others. Many employees wish to follow the guidance issued by their employers, and a strong recommendation in favour of vaccination may be enough to sway employees.

It is important to note, however, that some employees may be entitled to refuse vaccination due to health reasons, religious belief, or another ground protected by anti-discrimination laws. In such cases, the employer would have an obligation to accommodate the employee up to the point of undue hardship. This would likely mean permitting the employee to forego vaccination. If an employee opts not to receive a COVID-19 vaccination, whether due to a protected ground or otherwise, the employer should require the employee to continue to comply with all current COVID-19 health and safety measures, such as wearing a mask and completing a COVID-19 assessment on reporting to work.

Further, given the novelty of the COVID-19 pandemic, it remains to be seen whether employers may be able to take further steps to limit their exposure to liability should employees choose not to be vaccinated. For example, it is not clear whether an employer can require employees to sign waivers stating that the employer is not responsible for any health and safety risk exposure where the exposures is related to the employee's own election not to get vaccinated. Nor it is clear whether an employer could place an employee who refuses vaccination on an unpaid leave of absence. Whether such steps are appropriate should be assessed on a case-by-case basis and with appropriate legal guidance.

Conclusion:

To summarize, the law is unclear on whether employers can impose mandatory COVID-19 vaccination policies. This is especially the case for employers operating in industries outside of healthcare.

The limited case law does suggest, however, that employers should look to public health directives when developing and implementing any COVID-19 vaccinations policies. Further, employers should ensure that any vaccination policy is onside with applicable health and safety laws, as well as human rights legislation.

Lee Workplace Law would be happy to assist you in developing a plan for tackling COVID-19 vaccination in your workplace.